CANAL & RIVER TRUST
and
[ ]
sabrina 5 refurbishment CONTRACT(gLOUCESTER WATERWAYS
mUSEUM pROJECT )
PART 1 – GENERAL CONDITIONS OF CONTRACT
PARTIES
CANAL & RIVER TRUST whose registered office is at First Floor North, Station House, 500 Elder Gate, Milton Keynes MK9 1BB (“Employer”)
And
[ ]whose registered office is at [ ] (“the Contractor”)
(which may be referred to below in the Contract individually as “Party” or collectively as “Parties”)
BACKGROUND
1. The Employerwishes to have the Vessel, Sabrina, refurbished as outlined in the Employer’s invitation to tender included in Schedule 1 below.
2. The Contractor submitted a tender in response to the Employer’s requirements and the Employer accepted the Contractor’s tender.
3. The Contractor intends to carry out the Works in accordance with the Contract.
IT IS HEREBY AGREED as follows:-
1.1Unless the contrary intention appears, the following definitions apply:
“Acceptance of the Vessel” means the Employer certifies that practical completion of the Works has been achieved;
“Applicable Law” means all relevant binding law, legislation, codes of practice, regulations and permissions having the force of law and applicable to the Contract and performance of any obligations under Contract, including without limitation the requirements of the Health and Safety at Work Act 1974;
“Business Days” means a day (other than a Saturday, Sunday or bank or public holiday), when banks in London are open for business;
“Conditions” means the General Conditions in this Part 1 of the Contract, the Special Conditions in Part 2 and the Schedules in Part 3;
“Confidential Information” means the terms of the Contract, any information which is marked as being confidential or that may reasonably be regarded as the confidential information of the disclosing Party together with all information obtained from the disclosing Party that relates to the business, affairs, products, developments, trade secrets, know-how, employees, customers and suppliers of either party and the subject matter of this Contract and any information that may reasonably be regarded as the confidential information of the disclosing Party;
“Contract” means this contract between the Parties, relating to the Works and Materials, comprised of the Conditions , and other documents expressly referred to in this Contract, which shall be deemed incorporated by reference unless otherwise expressly stated in the Conditions. Reference in the Conditions to “the performance of the Contract” shall mean the delivery of the Works and Materials in accordance with the Contract;
“Contract Term” means the duration of the Contract, set out in Condition G1.3 ;
“Contractor’s Tender” means the tender of the Contractor dated [ ], submitted in response to the Employer’s Invitation to Tender and which is and included in Schedule [ 1B]
“Employer’s Invitation to Tender” means the Employers tender dated [ ] and included in Schedule 1A;
“Design Information” meansdesigns, drawings,programmes, relating to the Works and Materials, issued by or approved by the Engineer/Contract Administrator or the Contractor as applicable, whether in hard copy form or stored in any electronic or other medium;
“Effective Date” means the date upon which the Party, being the last signatory of the Contract, signs the Contract;
“Employers Invitation to Tender” means the Employer’s requirements (outlined in Schedule 1A) in relation to the refurbishment of the Vessel;”
“Engineer/Contract Administrator” means the person named in Schedule 3;
“Existing Intellectual Property Rights” means Intellectual Property Rights in Materials provided by the Contractor which existed prior to the commencement of the Contract, including computer programme and software;
“Expiry Date” means the expiry date of the Contract, being the end of the Rectification Period;
“Fees”means the charges specified in the Fees Schedule (including if applicable any additional disbursements or expenses) payable by the Employer to the Contractor for carrying out the Works in accordance with the Contract;
“General Conditions” means the General Conditions herein in this Part 1 of the Contract;
“Good Industry Practice” means the exercise of that degree of skill, care and diligence which would reasonably and ordinarily be expected from a prudent and experienced, properly qualified person engaged in performing Works the same as or similar to the Works and shall include compliance with applicable industry codes of practice relating to the Works;
“Force Majeure Event” means any cause affecting the performance by a Party of its obligations under the Contract caused by any act of God, natural disasters, riot, civil disorder, war, act of terrorism, rebellion or revolution, or other similar cause beyond the reasonable control of that Party and which could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by that Party at its expense through the use of alternate sources, workaround plans or other means;
“Grant”means funding received by the Employer from the Heritage Lottery Fund to enable the Employer to procure the Works and Materials specified in this Contract;
“Insolvent” means in relation to either Party (save in relation to a corporate reorganisation, reconstruction or amalgamation) the appointment of or the application to a court for the appointment of a liquidator, provisional liquidator, administrator, administrative receiver or receiver, the entering into a scheme of arrangement or composition with or for the benefit of creditors generally, any reorganisation, moratorium or other administration involving its creditors or any class of its creditors, a resolution or proposed resolution to wind it up, or becoming unable to pay its debts as and when they fall due or becoming deemed to become unable to pay its debts as and when they fall due within the meaning of Section 123 of the Insolvency Act 1986;
“Intellectual Property Rights” means all intellectual property rights howsoever arising and in whatever media, including (without limitation) patents, inventions, , registered designs, copyrights, rights affording equivalent protection to copyright, database rights and design rights, semiconductor topography rights, trademarks, service marks, logos, domain names, business names, trade names, moral rights, and all registrations or applications to register any of the aforesaid items, rights in the nature of any of the aforesaid items in any country or jurisdiction, rights in the nature of unfair competition rights and rights to sue for passing-off and any renewals, revivals or extensions of any of these rights;
“Interest Rate” means a rate of 5% per annum above the official dealing rate of the Bank of England current at the date that a payment due under this Contract becomes overdue;
"Key Personnel" means any employee or contractor or agent, employed by the Contractor to perform the Contract and who are identified in Schedule 3 or otherwise notified to the Employer by the Contractor in accordance with the Contract;
“Necessary Consents” means all approvals, certificates, authorisations, permissions, licences, permits, regulations and consents necessary from time to time for the performance of the Contract;
“Materials” means the materials and goods required to complete the Works to the Vessel, specified in the Specifications, including equipment, installations and systems to be installed;
“Party” or “Parties” means the Employer and/or the Contractor, in the context that the term appears in any part of the Contract;
“Payment Schedule” means Schedule 2, which specifies the Fees and they become due for payment by the Employer to the Contractor;
“Personnel” means the employees, sub-contractors or agents of the Contractoror the Employer as applicable;
“Rectification Period” means a defect liability period of 12months referred to in Condition SC15 below, which follows the Acceptance of the Vessel;
“Site”means the Site where the Vessel will be located following completion of the Works, being the location of the Gloucester Waterways Museum;
“Specifications” means the description of the Employer’s requirements for the refurbishment of the Vessel. Such specification is included in Schedule 1,in Design Information, in the Works and Delivery Programme and in instructions issued by the Employer or the Engineer/Contract Administrator in accordance with the Contract;
“Schedules” means the Schedules in Part 3 of the Contract;
“Special Conditions” means the conditions in Part 2 of the Contract;
“Works”/”Works and Materials”means thework and supply of Materials related to the refurbishment of the Vessel as specified in the Specifications;
“Works and DeliveryProgrammes” means the programmes drawn up in accordance Special Condition SC8.1, which further specify the Works and Materials and time for delivery;
“Works Commencement Date” means the date of commencement of the Works specified in Schedule [ ]or as notified to the Contractor by the Engineer/Contract Administrator;
“Vessel” theEmployer’s vessel, Sabrina described in Schedule 1;
1.2 If a Party is placed under a restriction in the Contract, the restriction includes an obligation on the Party not to permit the infringement of the restriction by any person within that Party’s control or responsibility.
1.3 References to liability include, where the context allows, claims, demands, proceedings, damages, losses, costs and expenses.
1.4 Words importing the singular meaning shall include, where the context so admits, the plural meaning and vice versa.
1.5 Words denoting the masculine gender shall include the feminine and neuter genders and words denoting natural persons shall include corporations and firms and all such words shall be constructed interchangeably in that manner.
1.6 The Conditionand paragraph headings in the Contract are for ease of reference only and are not to be taken into account in the construction or interpretation of any provision to which they refer.
1.7 References in the Contract to any statutes or statutory instruments include any statute or statutory instrument amending, consolidating or replacing them respectively from time to time in force, and references to a statute include statutory instruments, regulations and codes of practice made pursuant to it.
1.8 "Including", "includes" and "in particular" is illustrative, none of them shall limit the sense of the words preceding it and each of them shall be deemed to incorporate the expression "without limitation". "Other" and "otherwise" are also illustrative and shall not limit the sense of the words preceding them.
1.9An obligation on a Party to the Contract to do an act includes an obligation to procure that it is done by its employees, sub-contractors and agents as applicable.
1.10 Headings are for convenience only and shall not affect the interpretation of this Agreement; and
G1.The Contract and Contract Term
G1.1The Contract shall comprise the following provisions and in the event of conflict or inconsistency between the different parts, the parts shall take priority in the following order of precedence to that extent that is necessary to resolve the conflict or inconsistency:
a.Special Conditions in Part 2 below;
b.General Conditions in this Part 1;
c. Schedules in Part 3 below.
G1.2Any other terms and conditions shall only apply where expressly agreed to in writing by the Employer. The Contractor’s terms, wherever and howsoever they may appear (such as in the Contractor’s Tender, or in invoices issued by the Contractor) shall not form part of the Contract, unless expressly incorporated .
G1.3 The Contract Term shall commence on the Effective Date and, unless the Contract is terminated earlier in accordance with the Condition [ ], the Contract shall continue until the Expiry Date.
G.1.4 To the extent that the Contractor is required to undertake any activities following the Employer’s acceptance of the Contractor’s Tender, and such activities take place prior to the Effective Date, these terms and Conditions of Contract shall nevertheless apply to such activities undertaken prior to the Effective Date.
G2.Sub-contracting and Assignment
G2.1 The Contractor shall not sub-contract the performance of the Works, or assign its interest in the Contract or any part of it, nor any right arising under it, to any person without the prior written consent of the Employer, which shall be at the absolute discretion of Employer.
G2.2The Contractor shall be fully responsible for any of the Works sub-contracted as if the Contractor itself had performed such Works.
G2.3The Contractor shall deal direct with sub-contractors approved by the Employer and shall supply the Engineer/Contract Administrator with two copies of all Specifications which are to accompany orders to the sub-contractors valued in excess of £1,000 prior to the orders being placed.
G2.4 The Employer may at any time assign or change the benefit of the Contract and any rights under it to any person and shall notify the Contractor within a reasonable time of any such assignment or charge.
G3.Contractor’s General Obligations
G3.1In consideration of the Employer paying the Employer the Fees, in accordance with the Contract, the Contractor agrees to perform the Works and to supply all Materials,in accordance with the Specification and all Conditions of the Contract, and any amendment thereto made in accordance with the Contract.
G3.2Unless specifically agreed otherwise all Materials to be supplied in accordance with the Contract shall be new.
G3.3All Materials must be adequately protected against damage and deterioration in transit.
G 3.4 The Contractor shall perform the Works in a reliable and professional manner with appropriate skill, care and diligence and in conformity with Good Industry Practice and in compliance with Applicable Law.
G 3.5 The Contractor warrants that:
G3.5.1 all Works and Materials delivered in accordance with the Contract shall meet all the requirements of any technical specification specified in accordance with the Contract and shall be of the best quality of their respective kinds, be free of defects in design, workmanship or material, and when their intended purposes are known to the Contractor , be suitable for their intended purpose or purposes and shall comply with Applicable Law;
G3.5.2.that any Design Information provided by the Contractor and the Works and Materials shall be adequate and suitable in all respect to meet the requirements of the Specification including in particular and where applicable those relating to performance, stability, seaworthiness, dead-weight and dimensional limitations.
G3.6 The Contractor shall (unless otherwise specified in the Contract) at no additional cost to the Employer secure all Necessary Consents required in relation to the Works and Materials and performing the Contract.
G3.7The Contractor shall be relieved of obligations incurred under the Contract to the extent to which fulfilment of such obligations is prevented by any Applicable Law.
G3.8The Design Information relating to all Works and Materials which is to be supplied by the Contractor is specified in Schedule [1 ] and if not so specified, shall be specified in any relevant Works and DeliveryProgrammes or in other written instructions from the Engineer/Contract Administrator.
G4.Inspections,Delivery and Completion
G4.1The Employer may inspect or test the Works and Materials in accordance with Special Condition SC7.Any such inspection or testing shall not reduce or otherwise affect the Contractor’s obligations under the Contract.
G4.2 Delivery details relating to Materials and timescales for completing specific parts of the Works shall be as specified in the Works and Delivery Programmes or as otherwise approved in writing by the Engineer/Contract Administrator.Delivery shall be deemed completed when the Materials are placed at the delivery location in accordance with the Engineer’s/Work Administrator’s instructions,
G4.3 If times for the delivery of Materials are not specified, the Contractor shall ensure that delivery is during the Employer’s hand over hours on a Business Day, unless otherwise instructed by the Engineer/Contract Administrator.
G 4.4 If Materials or Works are not delivered or completed by applicable delivery dates specified in accordance with the Contract, the Employer may exercise any of the following remedies:
G4.4.1 terminate the Contract subject to and in accordance with the termination provisions under Condition [ G16];
G4.4.2 reject defective Works for Materials free of charge;
G4.4.3 require the Contractor to repair and replace any rejected Works or Materials at no additional cost to the Employer;
G4.4.4 refuse to accept subsequent delivery of Works or Materials which Contractor attempts to return;
G4.4.5 recover from the Contractor costs incurred by the Employer obtaining substitute Works or Materials from a third party ;
G.4.4.6 claim damages for other costs, losses, or expenses incurred by the Employer which are in any way attributable to the Contractor’s failure to carry out obligations under the Contract.
G4.5 The Contractor shall indemnify and keep the Employer indemnified in respect of all loss and/or expense which results during proper use directly or indirectly in whole or in part from defective Materials, workmanship or design supplied by the Contractor including, but not limited to the incursion of any statutory liability.
G4.6 For the avoidance of doubt, Condition G4 shall apply to any repaired or replacement Works or Materials.
G4.7 The rights and remedies under this Condition G4 are in addition to rights and remedies included in the Special Conditions and remedies implied by statute and common law.
G4.8The Contractor undertakes to notify the Employer in writing without delay of any change in circumstances which may delay delivery of Works or Materials.
G5.Passing of Title
G5.1Title in the Works and Materials supplied in accordance with the Contract shall pass to the Employer no later than the time of delivery, provided that any passing of title shall not prejudice either the Employer's right to reject for non-conformity with the Specification, or any other rights that the Employer may have under the Contract, and provided further that where advance or progress payments are made, title but not risk shall pass to the Employer as soon as Works and/or Materials and components as applicable are appropriated to the Contract. All Works or Materials and components so appropriated shall be adequately marked and recorded as being the property of the Employer. If required by the Employer the Contractor shall complete the vesting certificate included in Schedule 5 below to give effect to the transfer of ownership in property to the Employer.
G6.Force Majeure
G6.1 Neither Party will be liable for default or delay in the performance of its obligations under the Contract due to a Force Majeure Event and the non-performing Party will be excused from further performance or observance of the affected obligation(s) for as long as the Force Majeure Event prevails, provided that the Party will recommence performance or observance whenever and to whatever extent possible without delay.